Public Utility Service, Inc. v. Public Utilities Commission

406 N.E.2d 522, 62 Ohio St. 2d 421, 16 Ohio Op. 3d 447, 1980 Ohio LEXIS 788

Opinion

Per Curiam.

Appellant is a water-works company, as defined in R. C. 4905.03(A)(8), and a public utility, as defined in R. C. 4905.02. As a water-works company, appellant is subject to the requirements of R. C. 4933.25 and the regulations promulgated thereunder.¹ Ohio Adm. Code 4901:1-15 is a rule validly promulgated by the commission in accordance with statutory requirements and enumerates the required exhibits to be filed with a certificate application.

Appellant, a public utility as defined by law, was also subject to the requirements of R. C. 4909.18 at the time its certificate application was filed. R. C. 4909.18 provides, in pertinent part: “If the commission determines that such application is not for an increase in any rate* * *the commission may permit the filing of the schedule proposed in the application and fix the time when such schedule shall take effect. If it appears to the commission that the proposals in the application may be unjust or unreasonable, the commission shall set the matter for hearing* * *.”

Appellant’s contention that the above-quoted language imposes a mandatory duty on the commission to permit the filing of its June 29th rate schedule is not well-taken.² R. C. 4909.18 deals with the rate proposed in the application and not the filing of a second or later-proposed rate schedule.³

For the foregoing reasons, we affirm the order of the commission as being reasonable and lawful.

Order affirmed.

Celebrezze, C. J., Herbert, W. Brown, P. Brown, Sweeney, Locher and Holmes, JJ., concur.

Footnotes

1

R. C. 4933.25 provides, in part:

“No***water-works company established or expanding after October 2, 1969, shall construct, install, or operate***water distribution facilities until it has been issued a certificate of public convenience and necessity by the public utilities commission. The public utilities commission shall adopt rules prescribing requirements and the manner and form in which* * * water-works companies shall apply for a certificate of public convenience and necessity.”

2

It is to be noted that R. C. 4909.18 was amended, effective September 1,1976. Prior to the amendment, the statute .stated that “ * * * the commission shall permit the filing of the schedule proposed in the application***.” We held that this former language imposed a mandatory duty on the commission. Ohio Bell Telephone Co. v. Pub. Util. Comm. (1969), 17 Ohio St. 2d 45; Cinnamon Lake Utility Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 259. We recognize that the General Assembly intended to abrogate this mandatory duly by the 1976 amendment.

3

The commission states in its December 27th entry: “The first tariff which was filed with the Application for a Certificate on March 31, 1978, was given implicit approval by this commission* **in its Opinion and Order dated June 6***. Following commission approval, Public Utility Service merely had to file new copies of that tariff with this commission * * *. Instead Public Utility Service filed a second tariff in which it had made various changes. Such a filing is improper* * *.”